Reuter v. Lawe
86 Wis. 106
Wis.
1893
Check Treatment

On March 21,1893, the following opinion was filed:

*W"inslow, J.

In the examination of this case two questions of difficulty present themselves which were not adequately argued either in the oral argument or in the printed briefs. These questions are :

1. Did the taxation of the locus in quo as the property *108of Lawe from 1878 to 1890, in connection with nonuser and the other circumstances shown, operate to defeat the public rights therein either by way of abandonment or es-toppel?

2. Do the facts shown in the pleadings and proofs constitute in law fraudulent misrepresentation or concealment which entitles plaintiff to rescind, after delivery of deed and payment of purchase price?

In our view these are vital questions in the case, and we have concluded to order a re-afgument of these two questions.

By the Court.— Ordered accordingly.

The cause was re-argued upon the above questions, September 8, 1893.

Humphrey Pierce, for the appellant.

Da/oid S. Ordway, for the respondent.

The following opinion was filed October 17, 1893:

WiNSlow, J.

We find it unnecessary to decide the question as to the sufficiency of defendant’s title to the premises, and we intimate no opinion thereon. We affirm the judgment herein because no representations amounting in law to fraudulent representations were proven. The only representation proven by the "plaintiff to have been made is the following, taken from the plaintiff’s own evidence: “ Question. Did he [defendant] make any statements to you before you purchased it as to its being his ? Answer. He did always in any general conversations I had with him. He always called it ‘my yw/k’” Upon these general statements plaintiff says he relied, and it is not shown, either by admissions in the pleadings or by evidence, that he relied on anything else.

While authorities, may be found holding that a direct false representation that the vendor has good title to land sold, relied upon by vendee, may be sufficient to sustain an *109action to rescind tbe sale, we are confident that none can be found bolding that a mere reference by the vendor to the property as “ my land,” in general conversations with the vendee, will support such an action, even though the vendee may testify that he relied upon such expressions. Such a rule would convert into a fraudulent vendor nearly every person who sells land to which title afterwards fails. It would, in effect, supply a covenant of warranty of title in every real-estate sale. We cannot dignify mere general talk of the kind proven, which is not shown to have had any reference to the proposed purchase, into a fraudulent misrepresentation.

The element of fraud being entirely eliminated from the transaction, there can be no rescission, even though the title failed, because the contract had been executed by delivery of the deed and payment of the purchase money, and there was nothing to prevent the plaintiff from taking possession. McLennan v. Prentice, 85 Wis. 427. Under such circumstances the plaintiff’s remedy is by action on the covenants of the deed.

By the Court.— Judgment affirmed.